Attorney General Derek Schmidt urged lawmakers Wednesday to take a deeper dive into Kansas disaster emergency law to clarify constitutional authority, separation of powers and deal with tricky issues of a governor acting swiftly during a crisis and of local government officials ignoring a governor’s order.
He told a joint committee of the House and Senate during a Capitol hearing the Kansas Emergency Management Act had worked well during the past 45 years when applied to tornadoes, drought, floods and prairie fires. The legal framework is proving inadequate as the state responds to the COVID-19 infection of nearly 40,000 people in Kansas, he said.
“There can be no reasonable question that the KEMA’s unprecedented use during the COVID-19 response — unprecedented in its combination of geographic scope, duration and intrusiveness of emergency orders issued under its authority — has revealed concerns, gaps and shortcomings in the Act that should be addressed and decided by the Legislature,” Schmidt said.
The Republican-led Legislature adopted a bill during a special session in June to restrain Democratic Gov. Laura Kelly’s authority to impose statewide orders. She signed that measure into law, but questions have persisted about the proper balance and lines of authority when the state confronts such emergencies. The attorney general offered a series of ideas for consideration during the 2021 legislative session scheduled to begin in January.
“We’ve had a particular vantage point on how things have unfolded here since the coronavirus disaster reached Kansas,” said Schmidt, who has clashed and applauded the governor’s work during the pandemic.
Schmidt said one of his core concerns was the Legislature came dangerously close amid COVID-19 to handing legislative power to the executive branch. It is common for a governor to deal with administrative rules and regulations, but not to enact change that had the look and feel of a law.
He said Kelly stretched boundaries by issuing executive orders that permitted curbside liquor sales, suspended the notary statute for documents and limited legal liability for health care workers responding in the pandemic.
“These are great policy ideas,” Schmidt said. “How can that possibly be fit into this limited delegation of emergency powers?”
Another issue is whether local law enforcement should be held responsible for enforcing a governor’s executive order, he said. The law passed during the special session eliminated the prospect of criminal penalties for failure to follow an executive order and converted these issues to civil enforcement.
“There are some unique protections that generally attach in criminal enforcement,” Schmidt said. “If you’re going to authorize a law enforcement officer to go seize somebody on the street and deprive them of their liberty without prior judicial review, there’s all kinds of rules that attach in ordinary enforcement. We were very concerned about how some of those rules might be applied in the context of an emergency order.”
He recommended the Legislature consider an amendment to the Kansas Constitution to solidify boundaries of government action during disaster emergency.
The joint House-Senate committee took no formal action, but is expected to submit recommendations to the 2021 Legislature in January.
The Kansas Department of Health and Environment reported Wednesday coronavirus had so far been a factor in 437 deaths and 2,226 hospitalizations since March. The state has recorded 39,937 positive tests for COVID-19. There have been 475 outbreaks of the virus statewide, and 150 of those remain active.